First, Judge Colleen McMahon of the U.S. District Court for
the Southern District of New York declared that the White House
need not respond to Freedom of Information Act requests that it
turn over its legal doctrine for the drone program. Then, after
handing Obama that victory, she raised the possibility that he
is a murderer.

The judge was technically correct, perhaps, on the first
matter -- and very wrong on the second. Yet the White House
should take heed: The tangled nature of McMahon’s criticisms
reflects deep public confusion over the drone war. The
administration would be well served to throw aside the cover
McMahon provided, reveal the architecture of its legal approach
to drone killings, and open a broader discussion of the rules
under which the battle against Islamic terrorism will be fought.

McMahon was ruling on two requests -- one from the American
Civil Liberties Union and another from the New York Times --
that the administration turn over a 2010 Justice Department memo
that provided the legal justification for the 2011 targeted
killing of U.S. citizen Anwar al-Awlaki. The government insisted
that the memo and the other documents requested were classified,
being related to a covert operation.

Cryptic Comments

The plaintiffs argued that several officials, including
Attorney General Eric Holder in a speech last March, had
divulged much of the legal rationale in public and could
therefore no longer claim classified privilege. McMahon sided
with the government on the grounds that the public comments were
“cryptic and imprecise” and that “it lies beyond the power of
this court to conclude that a document has been improperly
classified.”

Then the judge climbed on her soapbox. “I can find no way
around the thicket of laws and precedents that effectively allow
the executive branch of our government to proclaim as perfectly
lawful certain actions that seem on their face incompatible with
our Constitution and laws while keeping the reasons for their
conclusion a secret,” she wrote. She implied that, as a citizen,
Awlaki should have faced treason charges in a U.S. court rather
than death in a Yemeni desert, and also that his death
constituted a breach of the U.S. criminal code, which forbids
the killing of U.S. nationals abroad.

The problem here is that the treason-clause argument was
already deemed irrelevant by the Supreme Court in 2004’s Hamdi
v. Rumsfeld. Besides, as terrorism expert Robert Chesney of the
University of Texas Law School puts it, “It simply is not clear
why the possibility that a person could be tried for treason
must foreclose resort to otherwise-lawful alternative measures.”
As for the point about the criminal code, it refers not to
killings in general but specifically to “murder.” Thus it
applies only if there is agreement that the drone campaign is
analogous to a murder spree.

McMahon’s reasoning aside, we are not convinced by the
government’s argument that the drone memo needs to stay in a
locked drawer. Between Holder’s speech and a front-page account
in the New York Times after Awlaki’s death, we have a pretty
good idea of the rules the administration has set for itself. At
the same time, the administration has legitimate concerns about
succumbing to FOIA requests for information on covert action. It
could be a dangerous precedent.

Voluntary Resolution

The way out of the puzzle is clear: The administration
should voluntarily release the memo. If there are national-security secrets involved, they can be redacted. Alternatively,
the White House can issue a document to Congress that clearly
delineates its legal thinking, just as the George W. Bush
administration did with its warrantless wiretapping operation in
2005.

Questions about the drone campaign, which is being waged
under the congressional authorization for the 2001 Afghan
invasion, are piling up. What is the legality of killing people
far from any battlefield? How do we decide to use a strike
rather than a ground operation? What weight is given to the
likelihood of civilian casualties? Does the authorization extend
only to al-Qaeda members, to its loose network of affiliates, or
to any Islamic militant? How much consideration is given to the
possibility of so-called blowback attacks when drone technology
becomes available to terrorists and other enemies?

These questions need to be answered. Problem is, the
discussion that could lead to those answers can’t begin until
Congress and the public hear from an administration that has
been far too quiet on its drone war for far too long.